Victoria’s New Limits on NDAs in Workplace Sexual Harassment Cases: What Employers Need to Know
Non‑disclosure agreements (NDAs) have traditionally been a common feature of workplace sexual harassment settlements. However new laws in Victoria have restricted when these agreements can be used. The Restricting Non‑disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) (the Act) took effect from 1 July 2026.
The new laws aim to prevent NDAs from being used to conceal workplace sexual harassment, reduce power imbalances in the negotiation process, and ensure complainants retain meaningful rights to speak about their experiences.
Key Changes at a Glance
· Victoria has introduced strict limits on how NDAs can be used in sexual harassment matters.
· An NDA is only enforceable if six statutory preconditions are met.
· Even with a valid NDA, complainants keep broad disclosure rights when speaking to their lawyers, regulators, medical professionals, unions and other prescribed bodies.
· Organisations must update templates, processes and internal training to comply with the new framework.
What Organisations Should Do Now
To meet their obligations under the Act, Victorian employers should:
· Review NDA templates to ensure they comply with the requirements under the Act and avoid prohibited restrictions.
· Train senior leaders and HR teams so they:
o understand the new laws and mandatory peconditions to ensure enforceability;
o are familiar with Victorian Government guidance materials and required pro forma documents;
o recognise that complainants retain broad rights to disclosure information to certain bodies and professionals, even when an NDA is valid.
· Seek early legal advice on structuring NDAs in workplace sexual harassment matters, including what information can and cannot be protected.
What Counts as Workplace Sexual Harassment and What Counts as an NDA?
A workplace NDA is defined broadly. It covers any agreement (or part of an agreement) intended to stop a complainant from disclosing material information about workplace sexual harassment.
Under the Act, workplace sexual harassment includes harassment committed, or alleged, against a worker either at work or in connection with their work.
The matter must also be sufficiently connected to Victoria, such as where the complainant usually works in Victoria, is based in Victoria for work, or where the organisation’s principal place of business is in Victoria.
Agreements which contain non‑disparagement and confidentiality clauses are specifically recognised as examples of workplace NDAs.
What Information Can Stay Confidential?
The Act allows limited confidentiality for protected information without needing to meet the six mandatory preconditions. Protected information means:
· the amount of financial compensation paid to the complainant;
· the identity of the respondent only if they were under 18 at the time of the conduct.
When Is an NDA Enforceable? The Six Mandatory Preconditions
A workplace NDA is only enforceable if all six of the following are satisfied:
1. The complainant must request the NDA. Employers, respondents or representatives cannot request, suggest or propose it.
2. The NDA must be the complainant’s express wish and preference. They must genuinely want confidentiality and not feel pressured into it.
3. The complainant must receive the official NDA Information Statement created by the Victorian Government after requesting the NDA and before signing it.
4. A 21‑day review period must be offered. The complainant may shorten or waive it, but only at their own request.
5. An acknowledgement form must be signed by all parties confirming the first four preconditions were met.
6. No undue influence or pressure can be applied by the employer, respondent or their representatives.
The NDA must also be written in plain language, and the complainant must receive a copy of both the executed agreement and acknowledgement form.
What Complainants Can Still Disclose - Even Under a Valid NDA
Even when all six preconditions are met, an NDA cannot stop a complainant from sharing information (other than protected information) with:
· Victoria Police or the Office of Public Prosecutions
· Lawyers
· Doctors, psychologists and mental health professionals
· Union representatives
· Employers or prospective employers for the purpose of maintaining or obtaining work
· Friends or family (if they agree to keep it confidential)
· Integrity bodies such as IBAC or the National Anti‑Corruption Commission; and
· Government agencies including AHRC, FWC, FWO, VEOHRC and similar bodies (provided the respondent and employer stay anonymous)
Complainants may also disclose compensation amounts to:
· Centrelink
· financial advisers
· tax agents
Any NDA clause that restricts these disclosures will be invalid.
Challenging or Ending an NDA
Challenging enforceability
A complainant may issue a breach notice if they believe any precondition was not met. If neither party who received a breach notice applies to the Magistrates Court within 30 days, it will be assumed that the preconditions were not met and the NDA becomes unenforceable.
Terminating an NDA
A complainant may terminate the NDA after 12 months, with seven days’ written notice. Termination of the NDA does not affect the enforceability of any separate settlement agreement.
Importantly, the Act expressly prohibits any term that requires a complainant to repay a settlement amount should they decide to exercise their right to terminate the NDA. Any such term would be unenforceable.
NDAs Between Employers and Respondent Employees
The Act also restricts NDAs between the employer and the respondent. Except for protected information, these NDAs cannot prevent the employer from:
· investigating the alleged sexual harassment, or
· disclosing material information to a prospective employer of the respondent if the allegations are substantiated.
Key Takeaway
Victoria’s new NDA regime reshapes how organisations manage sexual harassment complaints and settlements. Now is the time to review templates, update processes and ensure leaders understand their obligations.
